Judge Rejects Criteria for Florida Stream Nutrients

(CN) – A federal judge has thrown out water nutrient criteria that the Environmental Protection Agency set for Florida streams, but most criteria for other bodies of Florida water can remain. With nutrient contamination, mostly nitrogen and phosphorous, steadily rising, the EPA acknowledged beginning around 1998 that Florida’s standards to control water pollution were insufficient under the Clean Water Act. Though the Florida Department of Environmental Protection has agreed with the EPA’s findings since 2003, it kept extending the completion date for a solution. In 2009, EPA Administrator Lisa Jackson determined Florida needed to change its nutrient narrative criterion to numeric form. The narrative criterion is a general statement that outlines a regulation, and the numeric criterion relies on specific numbers. The ruling provided an analogy for the two types of criterion: a narrative speed limit would be “don’t drive too fast,” and a numeric, “70 mph.” Florida’s longstanding narrative criterion was “in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” The 2009 determination required Florida to create and implement the new criterion, or Jackson would. Jackson stepped in and adopted numeric criteria for nutrients in Florida lakes, springs and streams. The wastewater treatment, power generation, and cattle ranching industries, which contribute to nutrient contamination, filed suit claiming that the standards were too harsh. Environmental organizations meanwhile claimed that the criteria did not do enough. Eventually the Northern District of Florida in Tallahassee consolidated 13 complaints involving 25 parties. U.S. District Judge Robert L. Hinkle upheld most of the criteria in an 86-page decision filed Feb. 18. “This order upholds the administrator’s determination that numeric nutrient criteria are necessary for Florida waters to meet the Clean Water Act’s requirements, upholds the administrator’s lake and spring criteria, invalidates the stream criteria, upholds the decision to adopt downstream protection criteria, upholds some but not all of the downstream protection criteria, and upholds the administrator’s decision to allow – and the procedures for adopting – site-specific alternative criteria,” Hinkle wrote. Hinkle disagreed that Jackson set the new criteria with the intention of merely settling a July 2008 lawsuit that five environmental groups filed against the EPA. “The administrator had been asserting for more than 10 years that numeric nutrient criteria were needed,” he wrote. “If my role were to divine the administrator’s true purpose – it is not – my conclusion would be that the administrator’s purpose was to apply the Clean Water Act on the merits based on the agency’s long and sincerely held belief that numeric nutrient criteria were necessary to restore and maintain Florida’s waters.” But Jackson arbitrarily adopted criteria for streams and downstream-protection, the court found. “The administrator did not adequately explain the decision,” Jackson wrote, referring to the stream criterion. Downstream-protection criteria similarly failed to meet the court’s standards. “Here, as with the stream criteria, the administrator shot at the wrong target, seeking to identify not just a harmful effect on downstream waters, but any change in nutrients at all,” Hinkle wrote. “As with the stream criteria, this portion of the rule is arbitrary or capricious.”